When dishonest intent is enough to send you to prison

Suspended SC Rep Jim Merrill, with his hands behind him, appears at his bond hearing in December after being indicted on 30 corruption-related charges.
Tim Dominick
tdominick@thestate.com

Columbia, SC

WHAT HAPPENED after Arthur Hess’ conviction was so made-by-Hollywood — with prison beckoning, he and a female companion faked their deaths, fled to Tampa and managed a mobile home park for seven months until Columbia vacationers recognized him walking around Orlando’s Epcot Center, called police, and he was nabbed — that it’s easy to forget just how stunning his actual conviction was.

Mr. Hess was hired as Columbia’s police chief in 1978, tasked with cleaning up corruption in the department. Three years later, he was arrested by SLED agents and charged with taking bribes from the owner of a nightclub and video arcade business and covering it up.

Mr. Hess argued in court that he was actually running a sting and couldn’t tell anyone because his subordinates were corrupt. But that’s not the point of this story. The point is this: In addition to bribery, extortion and obstruction of justice, prosecutors threw in an obscure common-law “misconduct in office” charge.

The jury found Mr. Hess guilty of the misconduct charge but not guilty of all the others. Appeals followed, which is why Mr. Hess was free and able to flee to Florida five years after his conviction. In 1983, a unanimous state Supreme Court said the misconduct conviction was perfectly valid, even though Mr. Hess was not found guilty of any of the underlying crimes.

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Now, there is a statutory crime called misconduct in office, which applies to a limited number of officials and involves “habitual negligence, habitual drunkenness, corruption, fraud, or oppression.” It carries a sentence of up to a year in prison, but its point seems to be to remove the miscreant from office.

Common-law misconduct is very different. It’s not defined in the code of laws. You find it in court cases, and the first court case in South Carolina where you can find it is S.C. v. Hess, which is where our court spelled out its elements.

The court ruled that misconduct in office occurs “when duties imposed by law have not been properly and faithfully discharged,” and it approved the instructions the trial judge had given the jury: “Misconduct includes any act, any omission, in breach of duty of public concern by persons in public office provided it is done wilfully and dishonestly.”

The court noted three variants of misconduct: malfeasance, which means acting illegally; misfeasance, which means acting legally but corruptly (it can mean simply acting to defile the office); and nonfeasance, which means not carrying out a required duty of the office.

If that trio of terms sounds familiar, then you’re more familiar than a normal person ought to be with the governor’s authority to fire her political appointees. They are among the causes I am referring to when I say state law prohibits governors from removing some of their own appointees unless they “break the law or refuse to show up for work, or meet a few other narrow criteria.”

When applied to the power of governors to hire and fire, they are in most cases far too high a bar. When those same terms are used in criminal law, they are … extraordinary. Breathtakingly broad. What the common-law misconduct charge means is that where there is a legal “cause” for the governor to remove a protected board member or agency director — most recently members of the Richland County Recreation Commission — that person probably could be charged with a crime. A crime that carries up to 10 years in prison.

Common-law misconduct is the charge that set off the chain of events that would have ended House Speaker Bobby Harrell’s political career even if he had convinced a jury that he had not converted campaign funds to personal use or filed false campaign disclosure reports. Because the crime carries a sentence of up to 10 years in prison, it triggered Mr. Harrell’s automatic suspension from the House, which stripped him of his powerful position as speaker — a position he would not have been able to regain even if he had not been convicted.

Common-law misconduct is the charge that former Eutawville Police Chief Richard Combs pleaded guilty to in 2015, after juries twice failed to convict him of murder or voluntary manslaughter for killing an unarmed man who was trying to drive away after going to the police department to get his daughter’s traffic court appearance delayed.

It’s also the cherry atop 29 statutory corruption charges for which state Rep. Jim Merrill was indicted last month.

What that suggests is that if in fact most of the crimes he is accused of committing aren’t actually crimes in South Carolina, and if the prosecution can’t deliver evidence of a quid pro quo for those crimes that actually are crimes, Mr. Merrill could still be convicted of misconduct in office, be stripped of his office and possibly wind up in prison for 10 years.

I’m not sure whether I’m troubled by the sweeping nature of this charge or not. I’m sure of this: If you’re an elected or appointed official and you’re not trembling in fear at this moment, you haven’t been paying attention.

Ms. Scoppe writes editorials and columns for The State. Reach her at cscoppe@thestate.com or (803) 771-8571 or follow her on Twitter or like her on Facebook @CindiScoppe.

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Cindi Ross Scoppe has been The State’s opinion writer for 20 years, providing a pragmatic approach to SC state government; she was a reporter for 10 years before that. Her last day is Aug 31. Today she says good-bye.